Cashcard Australia Ltd

This matter concerned an application for trade mark registration by Cashcard Australia Ltd. The applicant sought to register a composite mark comprising a "CC" device and the word "CASHCARD". The hearing officer was required to determine whether the trade mark had inherent adaptability to distinguish the applicant's goods, and if not, whether its use prior to the application date had achieved distinctiveness under section 41(6)(a) of the relevant Act.

The primary legal issue was whether the evidence of use demonstrated that the composite mark, as a whole, had acquired distinctiveness in the minds of consumers. The hearing officer considered whether the use of the "CC" device and the word "CASHCARD" together constituted use of a single trade mark or two separate marks, referencing the Federal Court's decision in *Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd*. However, the hearing officer found this precedent unhelpful given the distinct factual circumstances of the present case, where the device and word were consistently presented in close proximity.

The hearing officer reasoned that the evidence of use, which primarily showed the composite mark, was of reduced weight in establishing distinctiveness for the composite mark itself, as there was no evidence of the device being used independently. While the applicant provided a statutory declaration asserting continuous use of "The Trade Mark CASHCARD" since 1984 on documentation, marketing, and ATMs, the hearing officer was not satisfied that this use, as presented, was sufficient to demonstrate that the composite trade mark, through use, distinguished the applicant's goods from those of other traders. The hearing officer concluded that the applicant had not done enough to satisfy the requirements for distinctiveness through use.

Consequently, the hearing officer decided to reject trade mark application number 1042552. The hearing officer noted that the applicant would need to refine its evidence and potentially obtain market surveys and trade evidence if it wished for the mark to achieve registration in the future.